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Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute
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Softly, Softly
Developing a Norm ative Fram ew ork for Internally Displaced Persons and its Im plications fo r th e Human Rights Law-Making Process
Simon Bagshaw
Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute
Florence February 2002
Table of Contents
Acknowledgem ents ii
Abbreviations iii
Chapter One Introduction 1
Chapter Two The Lim ited Effectiveness o f Treaty-Making 16
1. The Problem of Consensus and Its Implications 16
1.1 Protracted or Stalled Negotiations 22
1.2 Problems of Ratification and Entry Into Force 31
1.3 Reservations 33
1.4 Domestic Administrative Overload and Its Implications 41 2. Structural and Procedural Weaknesses in Human
Rights Treaty-Making
42
2.1 Lack of Structure 43
2.2 Initiation and Planning 44
2.3 Coordination 45
2.4 Normative Inconsistency 49
2.5 Expertise 53
2.6 Practical Problems 56
2.7 Proposals and Prospects for Reform 57
3. Obstacles to the Effective implementation of Treaties 65
4. Conclusion 72
Chapter Three Recourse to Alternative Techniques: Developing a Normative Framework fo r the Internally Displaced
74 1. The International Response to Internal Displacement 75 1.1 Analytical Report of the Secretary-General 79 1.2 Appointment of the Representative of the Secretary-
General
82
2. Developing a Normative Framework 85
2.1 Compilation and Analysis of Legal Norms 85 2.2 Guiding Principles on Internal Displacement 86 3. The Guiding Principles in Context — Soft Law-Making
through Restatement
87
3.1 Clarifying the Grey Areas 91
3.2 Addressing the Gaps 100
4. Developing the Guiding Principles — Motives and Opportunities
109
4.1 Avoiding the Pitfalls of Treaty-Making 110
4.2 Broader Range of Expertise 113
4.3 Financial Support 119
4.4 Political Support 122
5. Conclusion 128
Chapter Four Taking the G uiding Principles S eriously 129
1. State Responses to the Guiding Principles 130
2. Creating a Climate of Compliance 141
2.1 At the International Level 141
2.2 At the Regional Level 147
2.3 At the National Level 150
3. Conclusions and Future Steps 156
Chapter Five C onclusions 161
Appendix Guiding P rinciples on Internal Displacem ent 170
Acknowledgements
It’s been a long time in coming, but we got there in the end! And I mean ‘we’. This thesis results from the efforts and patience of more people than just the author. Thanks and appreciation first and foremost to Professor Philip Alston for his constant encouragement, invaluable guidance and ability to see the wood for the trees when I could not. Thanks also to Professor Walter Kalin whose contributions in the final stages were greatly appreciated.
My gratitude also to Dr. Francis Deng and Roberta Cohen for providing me with a unique and fascinating insight into the IDP issue from which the thesis has surely benefited.
Last but by no means least, my sincere thanks and appreciation to my parents - all three of you - and to my good friends in Florence, Venice, Geneva and elsewhere, whose encouragement was unstinting even if it was at times disguised cunningly as disbelief that I would actually finish.
Thank you to you all.
Ab b r ev ia tio n s ■i
ACHPR - African Charter on Human and Peoples’ Rights ACHR - American Convention on Human Rights
AEL - Proceedings of the Academy o f European Law AJIL - American Journal o f Internationa! Law
American Uni. J. Inti. L. and Policy - Amencan University Journal of International Law and Policy
ASEAN - Association of South East Asian Nations ASIL - American Society of International Law
A SIL Proc. - Proceedings o f the Amencan Society of International Law Australian J. Human Rights - Australian Journal o f Human Rights Australian YB in ti. L. - Australian Yearbook of International Law BYBIL - British Yearbook o f International Law
C .L .J - Cambridge Law Journal CAT - Committee Against Torture
CEDAW - Committee for the Elimination of Discrimination Against Women CERD - Committee for the Elimination of Racial Discrimination
CESCR - Committee on Economic, Social and Cultural Rights CHR - Commission on Human Rights
CIREFCA - International Conference on Central American Refugees Cornell Inti. L. J. - Cornell International Law Journal
CRC - Committee on the Rights of the Child CYBIL - Canadian Yearbook of International Law D H A - Department of Humanitarian Affairs ECHR - European Convention on Human Rights ECOSOC - Economic and Social Council
ECOWAS - Economic Community of West African States ELR - European Law Review
EPIL - Encylopaedia o f Public International Law ERC - Emergency Relief Coordinator
EU - European Union
European HR. L. Rev. - European Human Rights Law Review ExCom - Executive Committee of UNHCR
Fordham L Rev. - Fordham Law Review G77 - Group of 77
GA - General Assembly
Georgia J. Inti. & Comp. L - Georgia Journal o f Internationa! and Comparative Law GFA - General Framework Agreement for Peace in Bosnia and Herzegovina
Harv. HR. L. J -H a rv a rd Human Rights Law Journal Harv. L. Rev. - Harvard Law Review
Harvard In ti L. J. - Harvard International Law Journal
Hastings In ti & Comp. L. Rev. - Hastings International and Comparative Law Review
HRC - Human Rights Committee HRLJ - Human Rights Law Journal HRQ - Human Rights Quarterly
IASC - Inter-Agency Standing Committee
ICCPR - Internationa! Covenant on Civil and Political Rights
ICESCR - International Covenant on Economic, Social and Cultural Rights ICLQ - International and Comparative Law Quarterly
ICJ - International Court of Justice
ICRC - International Committee of the Red Cross IC V A - International Council o f Voluntary Agencies
IFRC - International Federation of the Red Cross and Red Crescent Societies IHRLG - International Human Rights Law Group
IJRL - International Journal o f Refugee Law 1LC - International Law Commission
ILJ - Industrial Law Journal
ILM - International Legal Materials ILO - International Labour Organisation
Int’l Migration Rev. - International Migration Review Inti. Migration - International Migration
IOM - International Organisation for Migration Israeli YHR - Israeli Yearbook o f Human Rights J. Inti. Affairs - Journal of International Affairs JRS - Journal o f Refugee Studies
Leiden J. o f In ti L - Leiden Journal of International Law Mich. J. Inti. L. - Michigan Journal o f International Law MINARS - Ministry o f Social Assistance and Reintegration MLR - Modem Law Review
NRHIs - National Human Rights Institutions NGO - Non-Govemmental Organisation
Nordic J. Inti. L. - Nordic Journal o f International Law NQHR - Netherlands Quarterly o f Human Rights NRC - Norwegian Refugee Council
NYU J. I n ti L. & Pol - New York University Journal o f International Law and P olitics OAS - Organisation of American States
OAU - Organisation of African Unity
OCHA - Office for the Coordination of Humanitarian Affairs ODIHR - Office for Democratic Institutions and Human Rights OHCHR - Office of the High Commissioner for Human Rights OSCE - Organisation for Security and Cooperation in Europe RC/HC - Resident/Humanitarian Coordinator
RdC - Collected Courses o f the Hague Academy res. - resolution
RPG - Refugee Policy Group
SARRED - International Conference on the Plight of Refugees and Displaced Persons in Southern Africa
SC - Security Council
Sub-Comm’n - Sub-Commission for the Promotion and Protection of Human Rights Sup. C t Rev. - Supreme Court Review
Texas Inti. L. J. - Texas International Law Journal UDHR - Universal Declaration of Human Rights UNDP - United Nations Development Programme
UNHCR - United Nations High Commissioner for Refugees
UNESCO - United Nations Educational, Scientific and Cultural Organisation UNICEF - United Nations Children’s Fund
Virginia J. Int’l. L. - Virginia Journal o f International Law WCC - World Council of Churches
WHO - World Health Organisation WFP - World Food Programme
Yale J. In ti L. - Yale Journal o f International Law YEL - Yearbook o f European Law
In tr o d u c tio n
Chapter One
The treaty is dead! Long live the legally non-binding agreement!’ A rather extreme and not entirely accurate assessment of the current state of human rights law making but indicative all the same o f an emerging trend in human rights law-making; a trend characterised by a move away from traditional state-centred law-making processes such as treaty-making to less state-centric, more inclusive, innovative and nuanced processes. A trend which this thesis seeks to examine by reference to the efforts in recent years to develop a normative framework for the protection and assistance of internally displaced persons - a conventional human rights issue, addressed in a rather unconventional manner.
Although treaties or ‘international conventions* are one of the four sources of international law referred to in the Statute of the International Court of Justice,1 they 1 According to Article 38(1 ), the traditional point of departure for the identification of the sources of international law, ‘[t]he Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting States;
b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognised by civilised nations;
d. subject to the provisions of Article 59 [stating that decisions of the Court have no binding force except between the parties to the case], judicial decisions and teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.’
Article 2(1 )(a) of the 1969 Vienna Convention on the Law of Treaties of 1969 defines treaties as international agreements concluded between States in written form and governed by international law. Pursuant to the maxim pacta sunt servanda and Article 26 of the Vienna Convention, according to which ‘[ejvery treaty in force is binding on the parties to it and must be performed by them in good faith’, treaties give rise to binding obligations for those States which expressly consent to be bound by the terms of a specific treaty. This is what Jennings and Watts describe as the ‘general importance of treaties’ - the fact that ‘the rules established by them, and the rights and obligations to which they give rise, are legally binding on the parties to the tre a ty ... It is this aspect of treaties which is foremost in Article 38(1 )(a) of the Statute of the International Court of Justice which refers to “international conventions, whether general or particular, establishing rules expressly recognised by the contesting States’” . In the case of United Nations human rights, the consent of the State must be expressed either by ratification or accession.
Although ratification and accession are both defined in Article 2 (1)(b) of the Vienna Convention as the ‘international act so named whereby a state establishes on the international plane its consent to be bound by a treaty*, the latter term applies specifically to states which took no part in the drafting or adoption of the treaty to which they subsequently seek to become a party. On the basis that ‘some international awareness of the fact of ratification [or accession] is needed in order to establish the state’s consent to be bound by the treaty' instruments of ratification or accession must, in the case of United Nations human rights treaties, be deposited with the Secretary-General. Human rights treaties are open for ratification or accession either by all States or by all Member States of the United Nations, in
have since the Second World W ar come to constitute its principal source. As O s c a r Schachter observes, since 1945, the expansion of international law in volum e, density and scope of subject matter ‘has been most evident in the proliferation o f treaties.’2 Indeed, at the time of the founding of the League of Nations there w e re only a small number of significant multilateral treaties, a number which increased only marginally during the inter-war period. However, with the establishment of th e United Nations and the various organisations that became its specialised agencies, the ‘real bloom’ in multilateral treaty-making began.3
For Henry Steiner and Philip Alston, treaties have become the principal expression of international law and, particularly when multilateral, ‘the most effective if not th e only path toward international regulation o f many contemporary problems’,4 not least among them the protection o f human rights: ‘Only treaties, not custom or general principles, can create international institutions in which State Parties participate and to which they owe duties.’5 The treaty constitutes ‘one of the most effective means for bringing some order to relationships among States or their nationals, and for th e systematic development of new principles responsive to the changing needs of th e international community.’6 It is the ‘prime legal form through which [the international community] can realise some degree of stability and predictability, and seek to institutionalise ideals like peaceful settlement of disputes and protection of human rights’.7
Since 1945, the United Nations has adopted over thirty multilateral treaties in the field o f human rights addressing a broad and diverse range of areas. O f these, the
which case provision is usually made for ratification or accession by non-Member States upon the invitation of the Genera! Assembly. See for example, Art.48 of the International Covenant on Civil and Political Rights. See further, R. Jennings and A. Watts, Oppenheim's
international Law (1992) 1197ff; I. Brownlie, Principles o f Public International Law (1998) 11-
14.
2 O. Schachter, International Law in Theory and Practice (1993) 74.
3 Szasz, ‘General Law-Making Process’, in O. Schachter and C. Joyner, United Nations
Legal Order, Vol. 1 (1995) 40
* H. Steiner and P. Alston, International Human Rights in Context: Law, Politics and Morals
(1996)30. * Ibid. 6 Ibid., at 32.
7 Ibid., at 32. In a similar vein, Virginia Leary refers to treaties as having fast become the principal tool at the disposal of the international community for obliging States to ‘improve the lot of their residents and to guarantee individual rights’. And as Martin, Schnably et a l observe, international human rights law ‘is first and foremost, a law of treaties’. See V. Leary, International Labour Conventions and National Law (1982) 1; and F.F. Martin, S.J. Schnably et al (eds), International Human Rights Law and Practice: Cases, Treaties and
following are often referred to as the six ‘core’ United Nations human rights treaties:8 the International Covenant on Economic, Social and Cultural Rights,9 the International Covenant on Civil and Political Rights10 and its two optional protocols,11 the International Convention on the Elimination of All Forms of Racial Discrimination,12 the Convention on the Elimination of All Forms of Discrimination Against Women,13 the Convention on the Rights of the Child14 and its two optional protocols,15 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.16
The scope and quantity of United Nations human rights treaty-making is certainly impressive. Indeed, the extent of human rights law-making in the United Nations has been described as constituting ‘one of the United Nations greatest and potentially most enduring, achievements’.17 Others have stated that ‘in perhaps no other area has the United Nations been so prolific, or some would argue, so successful as it has been in the adoption of new international norms for the protection of human rights’.18 What is less certain, however, is the extent to which one can maintain the view that treaties and treaty-making are - as Steiner and Alston assert - the most effective if not the only path toward international regulation of contemporary problems such as the protection of human rights.
8 ‘Core’ in the sense that they provide for a system of international monitoring of their implementation as discussed further in chapter two.
9 Adopted by GA res. 2200 A (XXI) (1966). In United Nations, A Compilation o f International
Instmments, Vol. 1, First Part (1994) 8 (hereinafter International Instruments).
10 Adopted by GA res. 2200 A (XXI) (1966). In International Instruments, ibid., at 20.
11 Optional Protocol to the International Covenant on Civil and Political Rights. Adopted by GA res. 2200 A (XXI) (1966). In International Instruments, ibid., 41; and Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. Adopted and proclaimed by GA res. 44/128 (1989). Ibid., at 46.
12 Adopted and opened for signature and ratification by GA res. 2106 A (XX) (1965). In
International Instruments, ibid., at 66.
13 Adopted and opened for signature, ratification and accession by GA res. 34/180 (1979). In
International Instruments, ibid., at 150.
14 Adopted and opened for signature, ratification and accession by GA res. 44/25 (1989). In
International Instruments, ibid., at 174.
15 Optional protocols on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography, draft resolution A/54/L84, adopted by the General Assembly at its 97th plenary meeting.
16 Adopted and opened for signature, ratification and accession by GA res. 39/46 (1984). In
International Instruments, ibid., at 293.
17 Effective implementation o f international instruments on human rights, including reporting
obligations under international instruments on human rights. Note by the Secretary-General.
A/44/668 (1989), para. 146.
18 Hannum, ‘Human Rights’, in C. Joyner (ed), The United Nations and International Law (1997)131.
1. Implementation Versus Elaboration
In the first place, there has for several years now been an emphasis on th e implementation of existing standards in preference to the elaboration of new o n e s . Writing in 1982 on the problems and dangers of normative conflict between hu m an rights instruments, Theodor Meron suggested that such problems were less likely in the future, given that the international community ‘may have passed the zenith o f its legislative activity in the area o f human rights, at least in so far as broadly oriented global instruments are concerned.’19 In its resolution 41/120 of 1986, the G eneral Assembly called upon Member States and United Nations bodies ’to accord prio rity to the implementation of existing international standards in the field of human rights* and urged ‘broad ratification of, or accession to, existing treaties in this field’. T h e following year, the United Nations Secretary-General urged that the main focus o f human rights activities should be ‘on bringing universal respect in fact for what h a s been agreed in principle’.20 In 1988, some went so far as to suggest that a moratorium be imposed on any further standard-setting.21
At less of an extreme, Theo van Boven noted in 1989 that in view of the adoption o f the International Bill of Human Rights22 and other international instruments, as w e ll as the ongoing development of the normative content of international human rights law by the human rights treaty bodies, ‘there are strong grounds for arguing th a t priority should be accorded to the implementation of existing standards in the field o f human rights rather than to elaborating new standards.’23 Ten years later, th e Bureau of the Commission on Human Rights remarked that the human rights standard-setting activities of the United Nations ’have entered a relatively advanced, mature stage, with emphasis increasingly being placed on implementation-oriented activities’.24
19 Meron, 'Norm Making and Supervision in International Human Rights: Reflections on Institutional Order’, 76 AJIL (1982) 771.
20 Quoted in A/44/668, para.151.
21 ‘Consolidation of Human Rights Machinery’, E/CN.4/1988/NGO/36 (1988).
22 That is to say the Universal Declaration of Human Rights, adopted and proclaimed by G A res. 217 A (III) (1948), and the two International Covenants.
23 van Boven, ‘The Future Codification of Human Rights: Status of Deliberations - A Critical Analysis’, 10 H R U (1989) 3.
24 Report o f the Bureau o f the fifty-fourth session o f Vie Commission on Human Rights
subm itted pursuant to Commission decision 1998/112. E/CN.4/1999/104 (1998), para. 58.
See also Higgins, ’International Law in a Changing International System’, 58 C.L.J (1999) 83, according to whom the ‘current emphasis’ in human rights is on implementation and that ‘law-making is probably largely behind us*.
4
amsm
Arguments in support of increased emphasis on implementation over standard setting are contained in Alston’s 1989 report to the General Assembly on the effective implementation of international instruments on human rights. For example, Alston notes that it has been suggested that new standard-setting exercises might sometimes be encouraged for the express purpose of diluting or undermining existing standards, or in order to distract attention and resources away from other important activities such as implementation.25 Given the expensive and time consuming nature of standard-setting, Alston states that some have implied that standard-setting might be part of a zero-sum game in terms of the allocation of available resources, noting that in response to a proposal for a new draft convention, one state suggested that the result would be to ‘divert scarce United Nations and Member State resources from other pressing human rights matters’. Thus, if the United Nations devotes a given amount of resources to standard-setting, the resources available both to the Organisation itself and to the Member States for other aspects of human rights promotion and protection will be reduced proportionately. Given the relatively small percentage of the United Nations budget devoted to human rights, the limited number of secretariat officials with the technical and legal expertise required for standard-setting, the constantly growing demands on the limited meeting time available to the various organs and the immense pressures for restraint generated by the Organisation's financial crisis, Alston considers that ‘there are strong arguments supporting the zero-sum game assumption’.26
It is along these lines that Geraldine Van Bueren dismissed the drafting of the optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. Noting that States do not always fulfil their international obligations, Van Bueren argued that sometimes ‘a disproportionate amount of energy is expended in seeking to raise standards, leaving less resources for their implementation’.27 The author referred to a proposal from within the Committee on the Rights of the Child for the creation of an ‘urgent responses’ procedure which would allow the Committee to intercede with States in the event of serious and urgent situations entailing a risk of further violations of the Convention, a procedure she regards as 'particularly suited to armed conflicts’ and considered as part of the 25 A/44/668, para. 149.
26 Ibid.
dialogue between the State Party and the Committee.27 28 For Van Bueren, ‘[i]t is t h is type o f constructive approach, working within the boundaries of the treaty, w h ic h needs to be explored more fully before seeking to raise minimum ages, which e v e n at their present levels are not always honoured’.29
The Committee on the Rights of the Child reacted in a similar fashion to t h e establishment in 1994 of an open-ended working group of the Commission o n Human Rights to prepare guidelines for the draft optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and c h ild pornography.30 During its sixth session in April 1994, the Committee stressed t h e important framework established by the Convention to deal with such issues31 a n d its ‘firm belief that ‘priority should now lie with the strengthening of t h e implementation of existing international standards’.32 The report of the w orking group on its first session reveals similar sentiments on the part of some of its members who felt the Convention already provided the necessary legal fram ework and that urgent action was needed above all to implement the relevant provisions. As the report put it: ‘Concern was expressed that in the present time of scarce resources, the elaboration of another international instrument might drain resources from existing efforts, ultimately with negative results.’33
2. The Continuing Need for New and Advanced Human Rights Standards
As will be shown, increased emphasis on the effective implementation of existing instruments is both necessary and welcome. That said, it is important to recognise also that there will always be a need to adapt standards to changing circumstances and to draft new standards in response to new challenges. As Nicolas Valticos h a s observed in regard to the need for further standard-setting by the International Labour Organisation (ILO), but clearly of broader application:
27 Van Bueren, ‘International Legal Protection of Children in Armed Conflict*, 43 ICLQ (1994) 825.
28 Ibid. See the report of the Committee, CRC/C/SR.42. 29 Van Bueren, note 27 above, at 825.
“ CHR res. 1994/90.
31 See Report on the sixth (special) session. CRC/C/29 (1994).
32 See the report of the working group in E/CN4/1994/WG.14/2/Add.1. Quoted in R . Hodgkin and P. Newell, implementation Handbook for the Convention on the Rights of th e
Child (1998) 467. The Committee reiterated this view in a subsequent statement to th e
Working Group in 1996. See Report on the eleventh session. CRC/C/50 (1996).
33 Question of a draft optional protocol to the Convention on the Rights of the Child on the
sale o f children, child prostitution and child pornography, as well as basic measures needed
6
It is true that the existing standards already cover a wide range of labour problems and even human rights but it would be an illusion to imagine that the body of standards could ever be complete, whether on the international or the national plane. In either case there can be no exhaustive or immutable code, especially in an area of rapid change: needs and concepts alter with the years and old instruments must be added to or overhauled to adapt them to new requirements.34
Similarly, van Boven notes that various reasons can be adduced for further standard-setting in human rights, not least of all that Existing human rights law leaves obvious gaps and does not fully meet the rights and interests of vulnerable persons or groups of persons’35 which, importantly, may change over time as a result of the emergence of new social, technological, economic and political realities.36 Indeed, developments in recent years in the area of biotechnology, for example, have led to calls for an international convention against the reproductive cloning of human beings on account of the possible dangers posed to the integrity and dignity of the individual.37
The continuing need for new or more advanced human rights standards has become apparent also in the context of the humanitarian crises of the post-Cold W ar
for their prevention and eradication. Report of the working group. E/CN.4/1995/95 (1995), paras.16-18.
34 N. Valticos, T h e Future Prospects for International Labour Standards’, 118 in ti Lab. Rev. (1979) 680. Similar sentiments, 18 years on, are noted in The ILO, Standard-Setting and
Globalisation: Report of the Director-General, International Labour Conference, 85th
Session, 1997 (1997), in particular at 35ff. In addition to observing that the international community may have reached the peak of its legislative activity in regard to broadly oriented global instruments, Meron states that ‘new subjects suitable for legislation will no doubt come up’ [note 19 above, at 772]. GA res. 41/120 recognises ‘the value of continuing efforts to identify specific areas where further international action is required to develop the existing international legal framework in the field of human rights'. The Secretary-General’s plea for universal respect for existing standards acknowledged the possibility that ‘changes in the global habitat’ and ‘new areas of human endeavour’ might give rise to the need for more standards. In the Third Committee of the General Assembly, one of the responses to the Secretary-General’s suggestion was to emphasise that ‘much still needed to be done, for instance, on the right to development, the right to adequate housing, human rights and mass exoduses, human rights in the administration of justice, migrant workers and their families, the enhancement o f social life, and the strengthening o f international cooperation in the field of human rights’. [A/C.3/42/SR.40, para.33, quoted in A/44/668, para.151]. Also, the report of the Bureau recognises that there is a ‘constant emergence of new issues requiring international attention’. [E/CN.4/1999/104, para.58],
35 van Boven, note 23 above, at 3. 36 Ibid., at 4.
37 See further, Letter dated 7 August 2001 from the Chargés d ’affaires a.i. o f the Permanent
Missions o f France and Germany to the United Nations addressed to the Secretary-General.
A/56/192 (2001 ). See also CHR res.2001/71.
7
era and beyond. Contrary to the hopes and aspirations of many, the bi-polar world of Cold W ar confrontation has not been replaced by a ‘new world order’ where ‘diverse nations are drawn together in common cause, to achieve the universal aspirations of mankind: peace, security, freedom and the rule of law’38 - a world characterised by liberal democracy, the free market and international cooperation. True, authoritarian regimes have given way to democratic alternatives in a number of regions; a Big Mac can now be bought in all corners of the world; and the cooperation of the Soviet Union in the Security Council allowed the ‘community of nations’ to respond decisively to Iraq’s invasion of Kuwait in 1991. Moreover, in the absence of Superpower rivalry, several long-standing conflicts in places such as Namibia, Nicaragua, El Salvador, Cambodia and Mozambique have wound down.
On the downside, however. Cold War confrontation has in many places been replaced by post-Cold W ar disintegration - disintegration of States, of peace and stability, and of human lives. The previous and present decades have bom witness to a broad range of humanitarian crises affecting all regions of the globe, stemming for the most part from armed conflict, generalised violence and associated violations of human rights.39 While armed conflict is hardly a new phenomenon on the international scene, the nature of contemporary conflict is qualitatively different to that of the past. Firstly, the overwhelming majority of contemporary armed conflicts are fought within rather than between States. Of the 27 major conflicts being fought at the beginning of the present century, all but two were internal conflicts.40 Secondly, the tactics used in contemporary armed conflict frequently rely upon the deliberate brutalisation of civilian populations on a quite extreme scale.41 Such
38 US President George Bush, ‘State of the Union Address', 29 January 1991. Reproduced in Keesings Record o f World Events: News Digest for January 1991, at 37940.
39 As the United Nations Secretary-General, Kofi Annan remarked in 1997: T h e lives of millions of people around the globe continue to be blighted by violence. In some parts of the world, state shave collapsed as a result of internal and communal conflicts, depriving their citizens of any effective protection. Elsewhere, human security has been jeopardised by governments which refuse to act in the common interest, which persecute their opponents and punish innocent members of minority groups... [S]uch conditions have made it impossible fo r those millions of people to exercise a basic human right: to live safely, peacefully and without fear in their own homes.’ In UNHCR, The State o f the World’s
Refugees 1997-1998: A Humanitarian Agenda (1997) ix.
40 See SIPRI, SIPRI Yearbook 2000 (2000). The vast majority of armed conflicts in 1999 were in Africa and Asia; there were 11 in Africa, 9 in Asia, 3 in the Middle East, 2 in Europe and 2 in South America.
41 As one o f a number of studies has observed, in contemporary armed conflicts between Governments and rebels, between different opposition groups vying for supremacy and among populations at large ‘[distinctions between combatants and civilians disappear in battles fought from village to village or from street to street. In recent decades, the proportion o f war victims who are civilians has leaped dramatically from 5 per cent to over 90 per cent. The struggles that claim more civilians than soldiers have been marked by horrific
conflicts and crises have revealed significant gaps and grey areas in existing international human rights law and subsequent failure in protecting the rights of vulnerable persons and groups, thereby underlining the need for the development of new or more advanced standards in regard to, for example, the participation of children in armed conflict and the protection and assistance of internally displaced persons. However, the conventional wisdom that treaty-making is the most effective means through which the international community can respond to such new and pressing human rights concerns is open to question.
There will of course be instances in which recourse to treaty-making will remain the preferred or in some cases the only option for the development of new and advanced standards. One such example is the drafting of the Optional Protocol to the Convention on the Rights of the Child raising the age for the participation of children in armed conflict. The object was essentially that of amending the relevant standards contained in the Convention. However, following the amendment procedures laid down in the Convention was likely be a time consuming experience.42 Moreover, the lack of political will in some quarters to develop appropriate standards seemed so great that resort to treaty-making served to raise the profile of the issue itself and mobilise political and legal impetus for protection efforts. Alternatively, there may be cases such as the recent establishment of a system for the submission of individual petitions to the Committee on the Elimination of Discrimination Against Women where the necessary legal basis for the extension of the Committee’s mandate could only be obtained through the drafting and levels of violence and brutality. Any and all tactics are employed, from systematic rape, to scorched earth tactics that destroy crops and poison wells, to ethnic cleansing and genocide. With all standards abandoned, human rights violations against children and women occur in unprecedented numbers.’ Impact o f armed conflict on children. Report of the expert o f the
Secretary-General, Ms. Graga Machel, submitted pursuant to General Assembly resolution 48/157. A/51/306 (1996), para.78, and Add.1, Annex I, ’Statement of the First Regional
Consultation on the Impact of Armed Conflict on Children in the Horn, Eastern, Central and Southern Africa’. See also Minimum humanitarian standards. Analytical report o f the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21.
E/CN.4/1998/87 (1998), paras. 24-37; and Report o f the Secretary-General on the protection
of civilians in armed conflict S/1999/957 (1999) and various reports by human rights NGOs
such as Human Rights Watch, Getting Away with Murder, Mutilation, and Rape - New
Testimony from Sierra Leone (June 1999); Federal Republic o f Yugoslavia: Humanitarian Law Violations in Kosovo (October 1998). See also reports by other NGOs, for example
African Rights, Rwanda: Death, Despair and Defiance (August 1995) and Amnesty International, Ethiopia and Eritrea: Human Rights Issues in a Year o f Armed Conflict, AFR 04/03/99 (May 1999).
42 See section 1.4 in Chapter 2, concerning the lengthy saga of amendments to the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women concerning the size of the Committee on the Rights of the
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adoption of the Optional Protocol to the Convention on the Elimination of Discrimination Against Women. Or, there may be cases such as human cloning, as referred to above, where the issues involved are so complex and unfamiliar that existing instruments are clearly inadequate and international regulation in the form of a treaty is seen as essential. Such cases notwithstanding, however, there are also issues such as internally displaced persons and HIV/AIDS for example, where treaty-making is not a feasible option, or where it would be simply too time- consuming and where the emphasis instead is on more flexible, ‘softer’ approaches to law-making.
3. The Limitations of Treaty-Making and Treaties
Recourse to such alternative approaches can be seen to result to a large extent from the limitations of treaty-making as a form of standard-setting. In particular, three main factors may be cited to account for the declining utility of treaty-making in certain areas of human rights. These form the focus of Chapter 2. The first of these stems from the inherent contradiction in human rights treaty-making, notably that the object of the exercise is to produce standards to govern the behaviour of States vis- à-vis their citizens and others within their jurisdiction and yet it those same States which are the decisive actors in the treaty-making process. Among the difficulties this may give rise to is that of obtaining consensus among States on the object and purpose of the treaty and the means through which these are to be achieved. As will be shown, this in turn can have serious implications for the progress of negotiations and the adoption, signature, ratification and entry into force of the treaty in question.
The second factor undermining the potential for treaty-making as an effective means through which to seek to elaborate new or more advanced human rights standards lies in the fact that the treaty-making process (to the extent to which the process can be considered in generic terms) is beset by a range of structural and procedural weaknesses. These concern, fo r example, the initiation and planning of a treaty making exercise, problems of coordination between different elements of the United Nations system with treaty-making responsibility, problems of normative inconsistency both within and between instruments, and a lack of requisite expertise in the drafting process.
Child and the length of meetings of the Committee on the Elimination of Discrimination Against Women respectively.
The third factor which can be considered to undermine the potential utility, not so much of the treaty-making exercise itself as the end result, stems from various obstacles to the effective implementation of treaties. Each of these factors is addressed and analysed in detail in Chapter 2 below.
•1
4. Recourse to Alternative Techniques - The Case of Internally Displaced Persons
The result of such problems and difficulties has been recourse to alternative standard-setting techniques, as exemplified by the efforts undertaken to develop a normative framework for the protection of and assistance to internally displaced persons and discussed in Chapter 3. Addressing the plight of internally displaced persons has emerged in recent years as one of the most pressing humanitarian, human rights and political issues now confronting the international community. Globally, there are an estimated 20 to 25 million persons,43 forcibly displaced within the borders of their own countries, predominantly by conflict and human rights violations,44 often in acute need of protection and assistance.45 There are also
43 Internally displaced persons. Report o f the Representative o f the Secretary-General, Mr.
Francis M. Deng, submitted pursuant to Commission resolution 1998/50. E/CN.4/1999/79
(1999), para.1. The imprecision is inevitable. In some countries where significant displacement exists reliable estimates are unavailable and in countries or areas where there is no United Nations or other international presence, groups of internally displaced persons can remain hidden or forgotten by the international community (Ibid., at para.10).
44 As the Secretary-General observed in 1992, ‘[t]he countries having large numbers of internally displaced persons are nearly all the scene of armed conflict or internal strife, or recently have been. Five such countries alone - Afghanistan, Ethiopia, Mozambique, Sri Lanka and the Sudan - account for an estimated nine to ten million internally displaced persons. Each of these countries has been affected by armed conflict, although other causes, including drought and widespread human rights violations, have also contributed to the number of internally displaced persons’ [Analytical report o f the Secretary-General on
internally displaced persons. E/CN.4/1992/23 (1992), para.18]. According to one survey,
conflict-induced displacement accounts for 4 million internally displaced persons in Sudan, 2 million in Angola, 1.8 million in Colombia, up to 1 million in Myanmar and Turkey. US Committee for Refugees, 'Principal Sources of Internally Displaced Persons as of 31 December 1999’. Available at www.refugees.orQ/world/statistics/wrsOO table5.htm See further F. Deng, Protecting the Dispossessed: A Challenge for the International Community (1993); R. Cohen and F. Deng, Masses in Flight: The Global Crisis o f Internal Displacement (1998), and The Forsaken People: Case Studies of the Internally Displaced (1998). See also, J. Hampton (ed), Internally Displaced People: A Global Survey (1998); D.A. Korn,
Exodus within Borders: An Introduction to the Crisis o f Internal Displacement (1998); and the
reports prepared by the Representative of the Secretary-General on Internally Displaced Persons, available at www.unhchr.ch
45 See for example, Cohen and Deng, ibid., at 2: 'Of the world’s populations at risk, internally displaced persons tend to be among the most desperate. They may be forcibly resettled on political or ethnic grounds or find themselves trapped in the midst of conflicts and in the direct path of armed attack and physical violence. On the run without documents, they are easy targets for roundups, arbitrary detention, forced conscription, and sexual assaults.
millions of persons internally displaced by natural disasters and other related causes.46 Not surprisingly, some have described internal displacement as ‘the hot issue for a new millennium.’47 Others have been less sensationalist perhaps but have still conveyed the enormity of the problem and the plight of those affected. For example, Kofi Annan, the United Nations Secretary-General, has referred to internal displacement as one of the great human tragedies of our time: T h e severity of the problem, both in intensity and scope, is obvious from the numbers of the displaced ... and the fact that virtually no region of the world is spared from this epidemic.*48
Uprooted from their homes and deprived of their resource base, many suffer from profound physical and psychological trauma. They are more often deprived of shelter, food and health services than other members of the population.*
46 A 1992 report by the Secretary-General defines the internally displaced as persons, ‘who have been forced to flee their homes suddenly or unexpectedly in large numbers: as a result of armed conflict, internal strife, systematic violations of human rights or natural or man made disasters; and who are within the territory of their own country’ [E/CN.4/1992/23, para. 17]. For several years, this constituted the working definition of internally displaced persons as used, inter alia, by the Representative of the Secretary-General on Internally Displaced Persons. The definition was considered satisfactory as it contained the two crucial elements of internal displacement (coerced or involuntary movement and remaining within one’s national borders) as well as its major causes.
Of course, defining a phenomenon as multifaceted as internal displacement is not an exact science. As the Representative notes, 'any definition of the concept risks either being too narrow or too broad, with the result that people who need protection and assistance might be excluded or the category might become to diffuse to be manageable* [Comprehensive study
prepared b y Mr. Francis M. Deng, Representative o f the Secretary-General on the human rights issues related to internally displaced persons, pursuant to Commission on Human Rights resolution 1992/73, E/CN.4/1993/35 (1993), para.33]. The working definition was
revised in 1998 for the purposes of the Guiding Principles on Internal Displacement and in view of deficiencies which became apparent with the increased focus on the issue following the Representative’s appointment in 1992. According to the revised definition, internally displaced persons are ‘persons or groups of persons who have been forced to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalised violence, violations of human rights or natural or human-made disasters, and who have not.crossed an internationally recognised state border. Report o f the Representative o f the Secretary-General, Mr. Francis
M. Deng, submitted pursuant to Commission resolution 1997/39. Guiding Principles on Internal Displacement E/CN.4/1998/53/Add. 2 {1998).
The present definition is an improvement on the original working definition in several respects. Firstly, the use of the qualifier ‘in particular* in connection with the major causes of internal displacement indicates that the list of causes illustrative rather than exhaustive, thereby avoiding the danger of excluding persons that may in the future require protection. Secondly, the revised definition disposes of the temporal and quantitative aspects of the working definition as, by way of example, in Iraq there was nothing ‘sudden or unexpected* about the displacement of Kurds which took place over a considerable period in the late 1970s, 1980s and early 1990s; and in Colombia, internally displaced persons often flee in 'small* rather than ‘large’ numbers. Thirdly, the revised definition broadens the notion of coerced flight to encompass not just those ‘forced to flee’ but those ‘forced to leave’ as well, the latter being those who have been expelled or forcibly moved from their homes as has occurred in Myanmar, Iraq, Ethiopia, and former Yugoslavia. See further, Cohen and Deng, note 44 above, at 16-19.
47 As used on the cover page of UNHCR's publication Refugees, Vol.4, No.117 (1999). 48 Kofi Annan, in Cohen and Deng, note 44 above, at xix.
g ■ ■■■■**
In 1992, in response to the growing international concern at the large number of internally displaced persons throughout the world and their need for assistance and protection, the United Nations Secretary-General, at the request of the Commission on Human Rights, appointed a Representative of the Secretary-General on Internally Displaced Persons, Francis Deng.49 The mandate of the Representative has since been renewed on four occasions, most recently in April 2001.50 During this time the mandate has focused on three main areas of work: visits to countries affected by internal displacement; promoting an institutional framework at both the international and regional levels; and developing a normative framework to meet the protection, assistance and development needs of internally displaced persons.51
It is in this latter respect that the Representative’s approach has differed significantly from that adopted by the great majority of other special procedures of the Commission on Human Rights. While some have called fo r the additional standard setting they have tended to focus on new treaties as providing the best way of filling the gaps which they have identified in the existing normative structure.52 Other mechanisms have directed their attention away from standard-setting.
The Representative’s activities in regard to developing a normative framework demonstrate in many respects an innovative and more nuanced approach to human
49 CHR res. 1992/73. It should be noted that while the author is currently employed as a senior research associate to the Representative of the Secretary-General on Internally Displaced Persons, the views reflected herein are the author’s own and do not necessarily reflect those of the Representative.
50 See CHR res. 1993/95,1995/57,1998/50 and 2001/54.
51 The Representative efforts in these respects are detailed in his reports as submitted annually to the Commission on Human Rights and biennially to the General Assembly. The reports are available on the website of the Office of the High Commissioner for Human Rights at www.unhchr.ch
52 For example, the Special Rapporteur on Violence Against Women has called for the adoption and ratification of an optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women which would allow women the right to seek redress for the violation of their human rights (which subsequently came to fruition). She also recommended that the international community consider the possibility of adopting an international convention on the elimination of violence against women. There does not at present exist a comprehensive international legally binding instrument on violence against women, and the position of the Special Rapporteur is only an ad hoc mechanism with no avenue for redress. See Report o f the Special Rapporteur on violence against women, its
causes and consequences, Ms. Radhika Coomaraswamy; submitted in accordance with Commission on Human Rights resolution 1995/85. E/CN.4/1996/53 (1996), paras. 143-144.
Also, the Special Rapporteur on summary, arbitrary or extrajudicial executions has recommended the adoption of a convention, similar to the Convention against Torture, which would provide domestic courts with international jurisdiction over persons suspected of having committed mass violations of the right to life; such a convention should also contain provisions for the allocation of a voluntary fund for victims. See Report o f the Special
Rapporteur of the Commission on Human Rights on extrajudicial, summary or arbitrary executions. A/51/457 (1996).
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rights standard-setting. In developing a normative framework the Representative has sought to consolidate the relevant provisions of international human rights and humanitarian law, and refugee law by analogy, and to address gaps and grey areas therein, not by recommending or seeking the drafting by Governments of a ‘hard’ treaty on internally displaced persons but through a ‘soft’ restatement by non governmental actors of existing norms in the form of the ‘Guiding Principles on internal Displacement’, as presented to the Commission on Human Rights in 1998. It is because of this emphasis, and the innovation that it represents in certain respects, that these standard-setting activities form the principal focus of this work.
The approach developed by the Representative has a number of advantages. First, he has been able to avoid the time consuming pitfalls of the traditional intergovernmental treaty-making process. Second, in developing the Principles through a twin-track process of working both outside and within the United Nations system, the Representative has been able to make more effective use of a broader range of expertise and has been able to mobilise a broader range of actors to support the process in financial and political terms.
Although, unlike a treaty, the Principles do not constitute a legally binding instrument and, therefore, do not give rise to binding obligations for States, they nonetheless contribute to an important standard-setting process which has major implications for the protection and assistance of the internally displaced as discussed in Chapter 4. Their acknowledgment by the Commission on Human Rights in 1998 effectively opened the way for their dissemination and application by the Representative in his dialogues with governments, intergovernmental, regional and non-govemmental organisations, and for their use by such organisations. Therefore, irrespective of their lack of actual binding legal force, through the state-sanctioned efforts of the Representative and other actors such as United Nations agencies and non- govemmental organisations (NGOs), the Guiding Principles are increasingly coming to provide the normative framework within which international, and to a lesser extent national, protection and assistance activities on behalf of the internally displaced are conducted.
The implications of this for the processes of human rights law-making are discussed in Chapter 5, the key point being that while the development of the Guiding Principles is not necessarily a blueprint for the future of human rights law-making, neither is the drafting a binding treaty necessarily a sine qua non for the
14 ¡ÏÏRW
development of an effective normative framework if the instrument in question is based on sound principles and can be successfully implemented in practice. On the contrary, the case of the Principles demonstrates that the collaboration of a broad range of governmental, intergovernmental and non-governmental actors can result in the elaboration of an instrument which may be broader in scope and more progressive in content and, if reinforced by suitable measures and means of promoting and ensuring implementation, more effective than a treaty in regulating the activities of States in the areas which it addresses. Beyond this, the case of the Guiding Principles is indicative of a broader trend characterised by a gradual but nonetheless fundamental change in the nature of international law-making in a globalising world. That is to say, a world in which a broad and diverse range of non governmental actors are becoming increasingly effective in influencing the international agenda.
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Chapter Two
Th e Limited Ef f e c tiv e n e s s o f Tr e a t y-Making
According to conventional wisdom, treaty-making is the most effective means through which the international community can respond to new and pressing human rights concerns. This view is increasingly open to question as a result of three main limitations: the problem of reaching consensus among States and its implications for the negotiation, adoption, ratification and entry into force of a treaty; structural and procedural weaknesses of the treaty-making as well as other traditional state- centred standard-setting techniques; and finally, obstacles to the effective implementation of treaties. The lack of effective efforts to overcome these various limitations has served to undermine the attractiveness and utility of treaty-making as a form of law-making and prompted recourse to alternative techniques.
1. The Problem of Consensus and its Implications
There is a contradiction or dilemma in human rights treaties and treaty-making stemming from the introverted nature of such treaties and the central role played by States in their drafting and implementation. Depending on the nature, sensitivity and complexity of the issue at hand, this contradiction can give rise to difficulties in obtaining broad agreement or consensus among States during the negotiation and drafting of a treaty which, in turn, may have negative repercussions for the conclusion of the treaty-making exercise and the ratification and entry into force of the treaty.
In contrast to general international law which is predicated on inter-state relations,1 the obligations arising from human rights treaties are effectuated within rather than between States. Thus, while treaties in the traditional areas of international relations are reciprocal in that they relate to and regulate some interaction among their Parties, such as consular relations, this element of benefits and burdens
1 As Bruno Simma observes: ‘If one examines its traditional patterns and processes, international law appears to be essentially ‘bilateral minded’. This means that as a rule international legal obligations exist on the level of relations between pairs of individual States. Therefore international law does not oblige States to adopt a certain conduct in absolue ... but only in relation to the particular state or States to which an international legal obligation is owed.’ Simma, ‘International Human Rights and General International Law: A Comparative Analysis’, 4 (2)AEL (1995) 168.
16 m i jijl 11 !1HHI }M! IIMI! ■ M ■ i mi !MW JfWff
running between the Parties is absent in human rights treaties. The obligations arising from a human rights treaty do not lead to any tangible give and take between States Parties: ‘the mutual rights of States Parties are not accompanied by any material benefits. As a consequence, reciprocity has very little, if any, basis on which to operate’.2
True, it may be argued from a normative or theoretical point of view that human rights treaties do give rise to rights and obligations between their Parties to the effect that any state party is obliged as against any other state party to perform their obligations in good faith and that any other party has a correlative right to integral performance by all other contracting Parties. As such, the obligations can be considered obligations erga omnes - ‘the omnes limited ... to the circle of all other contracting Parties’.3 Simma, for example, citing the International Court of Justice in its 1966 South West Africa judgement argues that although Parties to human rights treaties do not exchange any tangible benefits it does not necessarily follow that this lack of sociological reciprocity leads to the absence of reciprocal rights and duties. As the Court held:
2 Ibid., at 170. This view came to the fore in proceedings before the International Court of Justice leading to its Advisory Opinion on Reservations to the Convention on the Prevention
and Punishment o f the Crime o f Genocide. The British Government argued that ‘in the case
of conventions of a commercial, technical or general ty p e ,... the obligations ... are essentially reciprocal and operate between Parties, i.e. from each one towards each of the others separately1. In the case of a treaty such as the Genocide Convention ‘there are no obligations ... between Parties. Each party assumes obligations, it is true, but they are not obligations to be executed towards or for the benefit of other States... [Tjhis type of convention does not provide for reciprocal benefits between the Parties of a tangible character. It provides almost exclusively for the assumption by them o f obligations ... not dependent on the assumption of a similar obligation by the other Parties... In short, we are in the presence here of absolute obligations, not subject to any consideration of reciprocity at all’. Reservations to the Convention on the Prevention and Punishment o f the Crime o f
Genocide, ICJ Pleadings, 64 and 387-8.
See, also, the decision of the European Commission of Human Rights in Austria v. Italy in which the it held that ‘the purpose of the High Contracting Parties in concluding the Convention was not to concede to each other reciprocal rights and obligations in pursuance of their individual national interests but to ... establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedom and the rule of law’. The Commission continued that the obligations undertaken by the High Contracting Parties ‘are essentially of an objective character, being designed rather to protect the fundamental rights of individual human beings from infringement by any of the High Contracting Parties, than to create subjective and reciprocal rights for the High Contracting Parties themselves’. Austria v. Italy, Appl. No. 7881/60, 4 YECHR (1961) 138 and 140. See also the advisory opinion of the Inter-American Court of Human Rights in Effect o f Reservations on the Entry into Force of the American
Convention (Advisory Opinion OC-2I82) (1982), ILR, 67, 558, 568, para.29; and Restrictions to the Death Penalty (Advisory Opinion OC-3/83) (1983), ILR 70,449,466. In both cases the
Court held that human rights treaties are not multilateral treaties of the traditional type giving rise to reciprocal exchange of rights between States Parties.
3 Simma, note 1 above, at 199.
a legal right or interest need not necessarily relate to anything material or ‘tangible’, and can be infringed even though no prejudice of a material kind has been suffered. In this connection the provisions of certain treaties and other international instruments of a humanitarian character ... are cited as indicating that, for instance, States may be entitled to uphold some general principle even though the particular contravention of it alleged has not affected their own material interests; - that again, States may have a legal interest in vindicating a principle of international law, even though they have, in the given case, suffered no material prejudice, or ask only for token damages.4
According to the International Law Commission (ILC), in international law ‘there is always a correlation between the obligation of one subject and subjective right of another',5 i.e., international obligations do not exist in abstractor they must be owed toward one subject or to several or all subjects of international law.6 The principle that States may be entitled to uphold some general principle even though the violation thereof by another state party has not affected their own material interests is provided for in a number of United Nations human rights treaties which allow for the referral of disputes between States Parties to the International Court of Justice7 and/or to treaty monitoring bodies.8
4 South West Africa, Second Phase (Judgement) ICJ Reports (1966) 32. Cited in Simma, ibid., at 198-99. Also in support of this view, Simma cites Sir Gerald Fitzmaurice in his reports on the law of treaties to the ILC. In his second report, Fitzmaurice referred to the non-reciprocal nature of human rights treaties, that human rights obligations were of an absolute rather than a reciprocal character. However, in his fourth report he notes that in the case of multilateral treaties, a party to a treaty ‘has a duty towards the other party or Parties to carry it out, irrespective of whether any direct benefits to such other party or Parties will accrue there from; and correspondingly, any party to a treaty has, as the counterpart of its own obligation, the right to require due performance by any other party of its obligations under the treaty, irrespective of any such factor.’ Fourth report on the law o f treaties, A/CN.4/120, cited in Simma, ibid.
5 YBILC, Vol. II, Part 2 (1976) 76.
6 M. Kamminga, inter-State Accountability for Violations of Human Rights (1992) 163-4. Similarly, the European Court of Human Rights in Ireland v. United Kingdom held that ‘unlike international treaties of the classic kind, the [European Convention on Human Rights] comprises more than mere reciprocal engagements between contracting States. It creates over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement” Ireland v. United Kingdom (1978) ECHR, Ser. A, No. 125, 90.
7 Art.22 of the Convention on Racial Discrimination, for example, provides that ‘[a]ny dispute between two or more State Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the Parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.’ See also Art.IX of the Convention on the Prevention and Punishment of the Crime of Genocide, Art.30 of the Convention Against Torture, and Art.44 of the ICCPR which
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